The Australian Criminal Intelligence Commission (ACIC) has been granted extraordinary powers which permit Examiners of the ACIC to compel witnesses to answer questions, or produce documents or things, in relation to special ACIC operations or investigations.
People who refuse to comply with an examiners direction in an examination can be prosecuted or dealt for contempt of the ACIC. The contempt powers came into force in 2010, following enactment of the Crime Legislation Amendment (Serious and Organised Crime) Act (2010). The contempt powers were enacted in recognition of deficiencies in the traditional offence provisions to give effect to the coercive and often time critical nature of ACIC examinations because of the time for traditional prosecutions to be finalised. The explanatory memorandum specifically noted:
There are two issues with the offences as they currently operate. Firstly, there is no immediate threat of detention. At present, if a person is summonsed to appear as a witness and attends the examination but refuses to cooperate, the matter is referred to the CDPP and the prosecution proceeds by way of summons. As a result, there is no immediate detention or threat of immediate detention to the person. Arresting the person is not available as it is not necessary to arrest a witness in order to achieve any of the purposes set out in paragraph 3W(1)(b) of the Crimes Act.
Secondly, the effectiveness of these offences is often compromised by the delay in the commencement of court proceedings. It can often take a long time before a matter is brought before a court and even longer before the court is able to deal with the matter. Witnesses have been prepared to not cooperate with examiners, knowing that no penalty will be imposed for at least 12-18 months. Witnesses are aware that they may also be able to avoid criminal conviction (and therefore any penalty) by eventually agreeing to give evidence prior to the completion of the criminal process knowing that the evidence will have lost its value to the investigation by that stage. By delaying when information is provided, a witness is able to effectively delay and frustrate the operation of an ACC investigation.
Our coercive powers are at the centre of our agency’s operational effort and allow us to target the highest level of transnational serious and organised crime threats, including serious drug crime which has a devastating impact on the Australian community.
Failure to comply with the coercive examination process is a serious matter. The ACIC does not hesitate to pursue persons summonsed under the Australian Crime Commission Act 2002 (Cth) who fail to comply with the examination process, whether through a contempt process or prosecution.
Since October 2018, 6 witnesses have been found guilty of contempt of the Australian Criminal Intelligence Commission. Three of these witnesses were sentenced to indefinite terms of imprisonment (two of those remain in custody), while the others received fixed terms.
DTO21 (court appointed pseudonym) was found guilty of contempt of the ACIC in the Federal Court of Australia in March 2022, for failing to answer questions asked by an ACIC Examiner and was sentenced to an indefinite term of imprisonment. They have not purged their contempt.
In May 2021, EVA20 (court appointed pseudonym) was sentenced to imprisonment until further order of the Court.
A witness sentenced to indefinite imprisonment can purge their contempt at any time, and apply to the Court to fix their sentence. It is also open to a witness to apply to the Court to fix their sentence at any time.
Deputy CEO Intelligence
Australian Criminal Intelligence Commission